Wester v. Wester

564 So. 2d 799, 1990 La. App. LEXIS 1644, 1990 WL 88839
CourtLouisiana Court of Appeal
DecidedJune 27, 1990
DocketNo. 89-105
StatusPublished
Cited by4 cases

This text of 564 So. 2d 799 (Wester v. Wester) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wester v. Wester, 564 So. 2d 799, 1990 La. App. LEXIS 1644, 1990 WL 88839 (La. Ct. App. 1990).

Opinion

STOKER, Judge.

ISSUE

This is an appeal by the appellant-wife from a judgment of the trial court finding that fault of both parties contributed to the break up of the marriage between the parties, and finding that the appellant-wife is not entitled to an award of alimony penden-te lite. The appellee-husband answered the appeal alleging that appellant should be cast in damages for frivolous appeal.

FACTS

The parties were married on April 27, 1946 and separated on September 5, 1986, after 40 years of marriage. The record reflects that Mr. Wester left the matrimonial home on September 5, 1986 to visit his daughter’s home to conduct some minor repairs. He alleges that he later discovered his wife in front of his daughter’s home in the family car following him and “spying” on him. Mrs. Wester denied that she was spying on her husband, stating that she came by her daughter’s home at Mr. Wester’s request to make sure he had a ride home in the event his car did not start. In any event, Mr. Wester returned to the home, packed his clothes, left and never returned. He refused to explain his act of abandonment to his wife, other than to say he could not stand “it” any longer, could not stand “her” and her “attitude” any longer, and then left the matrimonial home.

Mrs. Wester filed a petition for separation grounded on mental cruelty of such a nature as to render living together insupportable. Mrs. Wester requested alimony and alimony pendente lite in her petition. Mr. Wester answered the petition and assumed the position of plaintiff-in-reconvention seeking a divorce based on the couple having lived separate and apart for a period exceeding one year. Petitioner-in-recon-vention further alleged that the cause of the physical separation of the parties was the mental cruelty of Mrs. Wester toward Mr. Wester or, in the alternative, the cause was the mutual fault of both parties.

The trial judge gave judgment in favor of the husband and granted him a divorce based on the couple having lived separate and apart for a period exceeding one year. In further provisions in the judgment the trial court (1) made a finding that “neither party is without fault which contributed to •the break up of this marriage” and (2) and denied a retroactive award of alimony pen-dente lite to Mrs. Wester because he found that during the pendency of the proceedings she had a net monthly income of $752.57. The trial judge further noted that in addition to her income she had had exclusive use of the family home and the exclusive use of the family automobile. On this basis the trial judge concluded that “the benefits available to her equaled or exceeded that of Mr. Wester.”

The trial judge gave no reasons for finding Mrs. Wester at fault and gave very little as to his reasons for denying her alimony pendente lite. He simply announced his conclusions orally from the bench at the end of the trial. We append as Appendix I a copy of the transcript setting forth the trial judge’s comments.

ASSIGNMENTS OF ERROR

Mrs. Wester has appealed contending (1) that Mr. Wester did not carry his burden of proof of her fault, and (2) that she is entitled to a retroactive award of alimony pen-dente lite. Mr. Wester did not appeal the finding of fault by the trial judge. In the brief on behalf of Mr. Wester, his counsel discusses the burden of proof in fault cases but does so in the context of bolstering his assignment of error that Mrs. Wester should be cast in damages for frivolous appeal. Although Mr. Wester answered the appeal, he did not make any complaint in that answer of the finding of fault of the trial judge. Therefore, the judgment finding Mr. Wester at fault is final. Vail v. Vail, 390 So.2d 978 (La.App. 2d Cir.1980); [801]*801and Adams v. Adams, 389 So.2d 381 (La.1980).

Neither party has appealed from the judgment of divorce itself.

LAW

The trial court’s finding of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Appellant argues that the trial court committed error in determining that she was at fault. We agree.

In Pearce v. Pearce, 348 So.2d 75, 77 (La.1977) the Louisiana Supreme Court construed the word “fault” as used in LSA-C.C. art. 160 which provides for alimony after divorce. The court stated:

“We have held that under this statute respecting an award of alimony to a wife without ‘fault,’ the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).”

The Supreme Court in Adams, supra, interpreted the quoted language to mean that for purposes of permanent alimony, fault which precludes alimony is synonymous with the fault grounds for separation and divorce. Adams, supra, p. 383. In Adams the Supreme Court quoted the language from Pearce set forth above and engaged in further explanation of the meaning of fault. In Adams the wife sued for a separation on the ground of abandonment; the husband reconvened on the ground of cruelty justifying his leaving the matrimonial domicile because of his wife’s jealousy. He apparently based his own reconventional demand on his wife’s acts and manifestations of jealousy. The trial court granted the separation on the ground of mutual fault. The Supreme Court reversed the trial court’s determination of fault on the part of Mrs. Adams. Following the quotation from Pearce, the Supreme Court gave the following additional interpretation of fault:

“Although not specifically mentioning C.C. art. 138(1) — (8), or C.C. art. 137 by name, this language clearly indicates that only such conduct as will entitle one spouse to a separation or divorce under these articles is sufficient to deprive the other spouse of alimony after a final divorce.
“Having determined that ‘fault’ for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce, it need only be decided whether plaintiff’s actions would have been sufficient to allow defendant to obtain a judgment against plaintiff under C.C. art. 138. We conclude that they were not.
“Defendant’s claim in reconvention was that plaintiff was guilty of cruel treatment toward defendant. The Civil Code provides that a separation on the ground of cruelty may be granted only when it is ‘of such a nature as to render their living together insupportable’, C.C. art. 138(3). We find that mere accusations by plaintiff of an illicit affair between defendant and another woman, and unintrusive rides by plaintiff past defendant’s work place, did not constitute acts of such a severe nature as to allow the rendition of a judgment of separation against plaintiff. See Barron v. Barron, 279 So.2d 208 (La.App. 2d Cir. 1973).” (Footnotes omitted)

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Bluebook (online)
564 So. 2d 799, 1990 La. App. LEXIS 1644, 1990 WL 88839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wester-v-wester-lactapp-1990.